Citation Nr: 1310011
Decision Date: 03/25/13 Archive Date: 04/02/13
DOCKET NO. 04-36 518 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
1. Entitlement to service connection for a left knee disorder or a right knee disorder.
2. Entitlement to an initial rating in excess of 10 percent for the service-connected degenerative disc disease of the lumbar spine.
REPRESENTATION
Appellant represented by: Sandra E. Booth, Attorney
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
A.M. Ivory, Counsel
INTRODUCTION
The Veteran had active military service from August 1979 to June 1983.
This appeal initially came before the Board of Veterans' Appeals (Board) from a November 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Petersburg, Florida.
In November 2000, the RO denied the Veteran's application to reopen claims for service connection for a left knee disorder and a right knee disorder. In March 2007, the Board denied the claims addressed in this decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2009, the Court issued a Memorandum Decision which affirmed the Board's decision that there was new and material evidence to reopen claims for service connection for a low back disorder and a bilateral (left and right) knee disorder, but vacated that portion of the Board's decision which denied those claims on the merits after reopening. In August 2010 the Board then remanded those claims for further development.
During the pendency of the appeal, the June 2012 rating decision granted the Veteran service connection for degenerative disc disease of the lumbar spine with an initial 10 percent disability rating effective July 21, 1993. Thus, the benefits sought on appeal for the issue of entitlement to service connection for a low back disorder have been fully granted and the issue is no longer before the Board.
The Board notes that in November 2012 the Board granted the Veteran an additional 60 days to submit additional evidence. In January 2013 the Veteran's representative stated that they were not going to submit any additional evidence.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required.
REMAND
After a careful review of the Veteran's claims file the Board finds that unfortunately, another remand is warranted.
In August 2010 the Board remanded the issue of entitlement to service connection for a knee disability in order for the Veteran to be afforded a VA examination; it was noted that the November 2009 Memorandum Decision determined that the Veteran's lay contentions that he had bilateral knee pain chronically after service was sufficient to require that he be afforded VA examination. The Veteran was afforded a new VA examination in June 2011; the VA examiner stated that "low back, bilateral knee is due to or a result of 6/14/83 - yes to swollen or painful joints and recurrent back pain." She then stated that "however I did not find any specific mention of his knee condition. Although it is possible that his knee condition is due to his military service, it would be mere speculation." In a January 2012 deferred rating decision it was noted that a clarification was needed from the VA examiner on her opinion. An addendum opinion was then issued in April 2012; however, it was issued by a different examiner. He stated that he reviewed the June 2011 opinion and "In my opinion she indicates that the Veteran's bilateral knee conditions are not due to military service." The Board finds that this April 2012 VA addendum opinion is insufficient since it was not done by the June 2011 VA examiner but is trying to interpret the possible meaning of the June 2011 VA examiner with no supporting rationale.
The Board finds that the Veteran's claims file must be sent to the June 2011 VA examiner for an addendum opinion; if the June 2011 VA examiner is not available then the Veteran must be scheduled for a new VA examination to determine the nature and etiology of the Veteran's bilateral knee condition.
The June 2012 rating decision granted the Veteran service connection with an initial 10 percent disability rating effective July 21, 1993. However, in July 2012 the Veteran filed a Notice of Disagreement (NOD) on the initial rating assigned. The Veteran has not been furnished a Statement of the Case (SOC) that addresses the issue of entitlement to an initial rating in excess of 10 percent for the service-connected degenerative disc disease of the lumbar spine. Consequently, the Board must remand to the RO to furnish an SOC and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely substantive appeal. See Manlicon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claims file all updated VA and private treatment records.
2. The Veteran's claims file should be sent to the June 2011 VA examiner; if the June 2011 VA examiner is not available then it must be documented and the Veteran must be scheduled for a new VA examination in order to ascertain the nature and likely etiology of his bilateral knee condition. The entire claims file, including a copy of THIS remand, must be made available to the examiner for review. The examiner should discuss the Veteran's medical history and his assertions regarding whether his condition is due to service. If required by the examiner, provide the Veteran with a new VA examination. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.
The VA examiner should review all pertinent records associated with the claims file, specifically including any medical opinions, and the Veteran's written and verbal accounts of his bilateral knee history. The VA examiner should answer all of the following questions:
A) Does the Veteran have a current knee diagnosis of either knee?
B) Is at least as likely as not (50 percent or greater probability), that the Veteran's bilateral knee disability is related to any aspect of the Veteran's military service? This includes either having its onset during service or is in any other way causally related to his active service.
If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.).
If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion.
All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.
3. The RO shall furnish the Veteran a Statement of the Case that addresses the issue of entitlement to an initial rating in excess of 10 percent for the service-connected degenerative disc disease of the lumbar spine. The RO shall return this issue to the Board only if the Veteran files a timely substantive appeal.
4. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified.
The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the appellant until further notice. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).